The United States District Court, Western District has sanctioned Lee Mueller, the person responsible for Edenville Dam when it failed, for his refusal to obey the court’s discovery order, issued in May.
The Michigan Department of Attorney General — along with the Department of Energy, Great Lakes and the Environment (EGLE) and Department of Natural Resources (DNR) — claimed it “secured a victory” following action taken by the court to “further correct the false narrative” around the 2020 failure of the Edenville Dam.
In a press release, the state Attorney General’s (AG’s) office alleged that Mueller withheld, and continues to withhold, documents and communications related to the failure.
It also laid out a series of events that it said are “now established in the state’s lawsuit” against Mueller and Boyce Hydro.
An engineer’s report into the failure of the nearly century-old dam in central Michigan said the likely cause was static liquefaction, rather than overtopping or internal erosion. A five-person independent forensic team evaluated the failure, which led to extensive flooding.
The AG’s press release said that after the May 19, 2020 breach of Edenville Dam, Mueller worked with attorneys to prepare a public response to questions about the dam. The public response included statements that the AG’s office alleged were not true, and which it said were part of a “coordinated effort to deflect blame away from the Muellers and their family business” and onto the state of Michigan.
The response included a statement that, believing Edenville Dam’s spillway capacity made it unsafe to maintain Wixom Lake at its winter or normal (that is, spring, summer and fall) level, Mueller and Boyce Hydro asked the state of Michigan in September 2019 to permanently lower Wixom Lake to run-of-river levels year-round. The AG’s office alleged that neither Mueller nor Boyce Hydro ever expressed such a belief to the state and never made such a request to the state.
The public response included a statement that Mr. Mueller and Boyce Hydro did not believe that Edenville Dam’s spillway capacity met the safety standards of the state of Michigan. The AG’s press release challenged that, saying that as late as March 26, 2020, Boyce Hydro’s dam safety engineer affirmed that the spillway capacity met state standards and that Boyce Hydro would not be required to upgrade that capacity under Michigan law.
The response included a statement that when Mueller and Boyce Hydro lowered Wixom Lake to run-of-river levels in November 2019, they intended for that to be permanent allegedly because Mueller did not believe the dam’s spillway capacity made it safe to maintain Wixom Lake at any other level. The AG’s office said that Mueller and Boyce Hydro asked the state to temporarily lower Wixom Lake to run-of-river levels for the winter of 2019/2020 “only because of potential ice buildup on the dam over the winter.” The two allegedly explained in their permit application that they intended to return Wixom Lake to its normal spring, summer and fall level in the spring of 2020, which they did.
The public response included a statement that Mueller and Boyce Hydro only returned Wixom Lake to its normal level in April 2020 because the state took enforcement action, compelling it to do so despite Mueller and Boyce Hydro expressed concern that Edenville Dam’s spillway capacity made it unsafe to do so. The AG’s office said the September 2019 permit application expressed Mr. Mueller and Boyce Hydro’s plan to return Wixom Lake to its normal level in spring 2020. They allegedly voluntarily implemented their plan by beginning the refill of Wixom Lake on April 13, 2020. They also allegedly did not express a concern to the State of Michigan that doing so would be unsafe.
“This action by the court corrects a misleading and false narrative crafted by the defendants as a propaganda campaign against the State,” said Michigan Attorney General Dana Nessel. She labeled the dam owners as responsible for the dam’s failure, and alleged it was due to “their long history of neglect.”
“The court has … establish[ed] as fact that at no time did the dam’s owners express any concerns to the state about safe operation of the dam while at summer lake level, or seek any change in that level as established by the local circuit court,” said Liesl Clark, EGLE director. “Now we can move forward to hold these owners responsible for their years-long neglect of the Edenville Dam.”
In June 2020, the Department of Attorney General, on behalf of EGLE and DNR, filed a lawsuit seeking compensation, civil fines, and the cleanup and restoration of damages caused by Boyce Hydro’s alleged negligence in the failure of Edenville and Sanford dams.
The eight-count lawsuit was followed by a motion to compel Boyce Hydro to immediately comply with a state order to fully inspect potentially dangerous cracks and erosion in a damaged portion of Edenville Dam that is still standing to determine what steps must be taken to protect public safety.
The lawsuit also seeks an order compelling Boyce Hydro to repair damages to Michigan’s natural resources, clean up discharges of debris and hazardous materials caused by the dam failures, and pay civil fines and damages related to the breach.
Statement from Mr. Mueller
Hydro Review reached out to Mr. Mueller through his attorney and received the following statement:
“The federal Court Order’s ‘finding of facts,’ which the Michigan Attorney General proclaims exonerates the state from all culpability for the breach of Edenville Dam, was authored (manufactured) entirely by none other than the State of Michigan Attorney General’s Office. Thus, it was not the result of a rigorous adversarial process of evidentiary cross examination by the parties and sentient fact finding by the court, either at the pretrial or trial stages of the U.S. District Court for the Western District of Michigan litigation. Frankly, this case is not even midway through the discovery period, and no evidentiary record, except for this sanctions order, has been established. But the court order assures that no trial will be necessary.
“The court found virtually irrelevant this individual defendant’s lack of financial and human resources, following the federal Boyce bankruptcy, the state/county condemnation of Edenville Dam-related property, and the non-debtor Boyce entities’ contribution of all remaining Boyce Michigan property to the Bankruptcy Liquidation Trust Fund for the benefit of the flood victims, thereby eliminating all possible sources of income therefrom, and rendering Mr. Mueller unable to hire the discovery experts needed in this complex dam breach litigation to cull, organize and mark years of voluminous records to respond correctly to the state’s overbroad discovery requests within the ordinary time frames imposed on public multinational corporate defendants.
“The district court order also facilitates the state’s ongoing violation of the U.S. Bankruptcy Court for the Eastern District of Michigan orders of Nov. 22, 2021, which specifically enjoined the state from pursuing its pecuniary interests (as opposed to exercising its police powers) in the U.S. District Court for the Western District of Michigan action and in the 30 or more lawsuits filed by flood victims against the state of Michigan in the Michigan Court of Claims at the expense of the flood victims. The state sought this specific discovery sanction with the intent of neutralizing Mr. Mueller’s affirmative defenses and, consequently, reducing the state’s comparative fault/liability owed to the thousands of flood victims. In other words, the district court order enables the state of Michigan to reduce the amount of any potential economic compensation awards the flood victims might secure, and to thereby remain politically unaccountable to Michigan’s four lakes region.
“The evidence the district court order ignores specifically concerns the state’s knowledge, months prior to the Edenville Dam breach of May 19, 2020, that the inabililty to raise the dam’s spillway gates fully prevented it from meeting Michigan’s 50% probable maximum flood spillway capacity standard. Yet, the state ignoring this deficiency, and aided by the Four Lakes Task Force, nevertheless compelled Boyce and Mr. Mueller to raise the lake level in April 2020, one month prior to the end of Michigan’s highest precipitation month of the year, as a condition precedent for the Four Lakes Task Force proceeding forward with the acquisition of the dams.
“This order reflects not the administration of justice, but rather, the administration of the court’s calendar in the interest of the state. It is truly a sad day in America.”
